FIRST DIVISION

VICTORIA ONG,
Petitioner,

G.R. No. 149140

Present:

- versus -

PANGANIBAN, C.J.
Chairperson,
YNARES-SANTIAGO,
AUSTRIA-MARTINEZ,
CALLEJO, SR., and
CHICO-NAZARIO, JJ.

Promulgated:
ERNESTO BOGALBAL[1] and
HON. COURT OF APPEALS,
Respondent.
September 12, 2006
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CHICO-NAZARIO, J.:
In this Special Civil Action for Certiorari under Rule 65 of the Rules of
Court, petitioner seeks the nullification of a 22 May 2001 Court of Appeals
Resolution denying her Motion for Reconsideration of a 31 March
2000 Decision.[2]
The Court of Appeals found the facts to be as follows:
On January 2, 1995, [herein respondent] Ernesto Bogalbal, an architectcontractor doing business under the name and style of E.B. Bogalbal
Construction, entered into an Owner-Contractor Agreement with [herein
petitioner] Victoria Ong, a businesswoman, for the construction of a proposed
boutique owned by the latter to be known as Les Galeries de Paris located at the
3rd Floor of the Shangri-La Plaza, Epifanio Delos Santos Avenue corner Shaw
Boulevard, Mandaluyong City (Exhibits A and 1, pp. 100-102, ibid). The

agreement provides that in consideration of the sum of two hundred thousand

pesos (P200,000.00), the contractor agrees to furnish labor, tools and equipment
to complete the work on the boutique as per specification within forty-five (45)
days excluding Sundays from the date of delivery of the construction
materials. Payment by the owner shall be made by progress billing to be collected
every two (2) weeks based on the accomplishment of work value submitted by the
contractor to the owner as certified for payment by the architect assigned on
site. The agreement likewise provides for a change order as a result of fluctuation
in the cost of labor. Moreover, should the owner require the contractor to perform
work over and above that required, the additional cost shall be added to the
contract amount and if ordered to omit work as required by their agreement, the
cost of work omitted shall be deducted from the contract amount.
Actual work on the project commenced on January 19, 1995. For work
accomplished during the period January 19 to 28, 1995, [respondent Bogalbal]
submitted and was paid his progress billing no. 1 in the sum of P35,950.00
equivalent to 17.975% of the total job to be performed (Exh. E, p. 106,
ibid). Partial billing nos. 2 and 3 for the period from January 29 to February 15,
1995 and February 16 to March 3, 1995 in the sum of P69,000.00 and P41,500.00,
equivalent to 34.65% and 20.63% of the total job, respectively, were likewise
made to respondent and paid for by the latter (Exhs. F and G, pp. 107-108,
ibid.).
It is with respect to progress billing no. 4 that the present controversy
arose. When [respondent Bogalbal] submitted the fourth progress billing on
March 31, 1995 for the period covering March 4 to 18, 1995, in the sum of
P30,950.00 equivalent to 15.47% of the total job (Exh. B, p. 103, ibid.),
[petitioner Ong] refused to pay the same. As in the previous three billings, the
fourth billing was first evaluated and recommended for payment by Supervising
Architect John Noel R. Cano, an employee of Balce-Sindac and Associates, the
principal designer of the [petitioner Ongs] boutique (Exh. H-1, p. 110, ibid.).
The reason for [petitioner Ongs] refusal to pay the fourth (4th) progress
billing is not clear on the record. It is [respondent Bogalbals] contention that
[petitioner Ong] refused to pay since she was insisting that the flooring, which she
asked to be changed from vinyl tiles to kenzo flooring where polyurethane is to be
used as coating, be first completed within three (3) days from April 22,
1995. [Respondent Bogalbal], however, insisted that the same is not possible
because the floor needed to be cured first to avoid adverse chemical reaction of
the polyurethane on the color of the flooring. Due to the insistence of [petitioner
Ong] that the flooring be finished in time for the arrival of the furniture from
abroad, [respondent Bogalbal] proceeded with the work but the rushed work
resulted in the reddish reaction of the polyurethane on the floor, which was not
acceptable to respondent (TSN, March 28, 1996, pp. 30-32; June 21, 1996, pp. 1518).

On the other hand, [petitioner Ong] contends that her refusal to pay was
because the fourth billing was allegedly in excess and over the value of the work
accomplished during the period. To settle the matter, the parties purportedly met
whereby [respondent Bogalbal] supposedly agreed to finish the kenzo flooring
on or before April 24, 1995 before [petitioner Ong] would pay the fourth (4th)
progress billing. However, instead of complying with his commitment,
[respondent Bogalbal] abandoned the project on April 24, 1995 when it became
apparent that he could not complete the kenzo flooring on the date agreed upon.
Due to [petitioner Ongs] continued refusal to pay [respondent
Bogalbals] fourth (4th) progress billing despite written demands from his
counsel (Exhs. C and D, pp. 104-105, ibid), the latter was constrained to file
an action for sum of money with damages with the Metropolitan Trial Court
(MeTC) of Caloocan City.
The complaint, which was docketed as Civil Case No. 22143 and raffled
to Branch 49 of the court, prayed for actual damages in the total sum of
P50,450.00 representing P30,950.00 (4th progress billing), P16,000.00 on the
change order from vinyl tiles to kenzo flooring and an unidentified amount. It
likewise prayed for moral and exemplary damages, as well as attorneys fees.
In her answer with counterclaim, [petitioner Ong] refused payment of the
fourth (4th) progress billing since [respondent Bogalbal] failed to perform what
was incumbent upon him under their agreement, but instead abandoned the job to
her great damage and prejudice. As to the P16,000.00 value of the change order,
she alleged that the same was premature since she had never received any billing
for said change order duly certified for payment and approved by the Architect
assigned on site. Besides, [petitioner Ong] averred that the P16,000.00 being
charged by [respondent Bogalbal] was grossly disproportionate with the quantity
of the work actually accomplished by the former. By way of counterclaim,
[petitioner Ong] prayed for actual damages by reason of [respondent Bogalbals]
refusal to finish the job agreed upon which forced her to hire a new contractor to
complete the same for which she paid the sum of P78,000.00 and for loss of
business opportunity in the amount of P50,000.00. She likewise prayed for moral,
exemplary and liquidated damages, as well as attorneys fees.
After trial on the merits, the [MeTC], in a Decision dated June 18, 1998,
ruled in favor of [respondent Bogalbal,] awarding to him the sum of P30,950.00
representing the fourth progress billing, P13,000.00 representing the value of the
accomplished work on the kenzo flooring, P15,000.00 as attorneys fees,
P20,000.00 and P25,000.00 as moral and exemplary damages, respectively (p.
175, ibid.).
Aggrieved by the decision of the court, [petitioner Ong] elevated the case
on appeal to the Regional Trial Court (RTC) of Caloocan City. The appeal was
docketed as Civil Case No. C-18466 and raffled to Branch 126 thereof.

The court a quo, after requiring the parties to submit their respective
memoranda, reversed and set aside the ruling of the MTC and rendered judgment
in favor of [petitioner Ong] in a Decision dated February 18, 1999 (p. 407,
ibid.). It is worthy to note that although the RTC ruled in favor of [petitioner
Ong], it did not specify the relief granted to her in the dispositive portion of its
decision.[3]

Respondent Bogalbal then filed a Petition for Review with the Court of
Appeals. On 31 March 2000, the Court of Appeals granted the Petition, disposing
of the case as follows:
WHEREFORE, IN VIEW OF THE FOREGOING, the petition is
hereby GRANTED. The Decision of the Regional Trial Court dated February 18,
1999 is REVERSED and SET ASIDE, and the Decision of the Metropolitan
Trial Court dated June 18, 1998 is REINSTATED. No pronouncement as to
costs.[4]

The dispositive portion of the reinstated 18 June 1998 Metropolitan Trial

Court (MeTC) Decision is as follows:
WHEREFORE, after a careful consideration of the foregoing evidence,
the Court finds the same to strongly preponderates (sic) in favor of the plaintiff
and hereby orders defendant Victoria Ong to pay plaintiff Ernesto Bognalbal the
amount of THIRTY THOUSAND NINE HUNDRED FIFTY PESOS
(P30,950.00) representing the value of his accomplished work for the period from
March 4 to March 18, 1995, the amount of (P13,000.00) THIRTEEN
THOUSAND PESOS representing the value of his accomplished work on the
kenzo flooring equivalent to 60% of the agreed fee of P25,000.00 minus the
amount of P2,000.00 paid under the third progress billing, the amount of
FIFTEEN THOUSAND (P15,000.00) PESOS as and for attorneys fees, the
amount of TWENTY THOUSAND (P20,000.00) PESOS AS MORAL damages
and the amount of TWENTY-FIVE THOUSAND (P25,000.00) PESOS as
exemplary damages. Defendant is further ordered to pay the costs of this suit.
For lack of sufficient basis, the counterclaim of the defendant is
hereby DISMISSED.[5]

On 22 May 2001, the Court of Appeals denied petitioner Ongs Motion for
Reconsideration in the assailed Resolution, a copy of which was received by
petitioner, through counsel, on 11 June 2001.

In the instant Petition for Certiorari, filed on 10 August 2001, petitioner

Ong alleges that:
THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OF JURISDICTION IN DENYING
THE MOTION FOR RECONSIDERATION AND IN RESOLVING THE
ABOVE-ENTITLED CASE IN FAVOR OF THE PRIVATE RESPONDENT.[6]

Propriety/Impropriety of Special Civil

Action for Certiorari under Rule 65

Petitioner claims that a special civil action for certiorari is proper since
appeal by certiorari under Rule 45 is limited only to questions of law. This is
wrong. The writ ofcertiorari is proper to correct errors of jurisdiction committed
by the lower court, or grave abuse of discretion which is tantamount to lack of
jurisdiction. Where the error is not one of jurisdiction but an error of law or fact
which is a mistake of judgment, appeal is the remedy.[7]
It is true that, as a general rule, in the exercise of the Supreme Court's power
of review, the Court is not a trier of facts and does not normally undertake the reexamination of the evidence presented by the contending parties during the trial of
the case considering that the findings of facts of the Court of Appeals are
conclusive and binding on the Court. However, the Court had recognized several
exceptions to this rule, to wit: (1) when the findings are grounded entirely on
speculation, surmises or conjectures; (2) when the inference made is manifestly
mistaken, absurd or impossible; (3) when there is grave abuse of discretion; (4)
when the judgment is based on a misapprehension of facts; (5) when the findings
of facts are conflicting; (6) when in making its findings the Court of Appeals went
beyond the issues of the case, or its findings are contrary to the admissions of both
the appellant and the appellee; (7) when the findings are contrary to the trial court;
(8) when the findings are conclusions without citation of specific evidence on
which they are based; (9) when the facts set forth in the petition as well as in the
petitioner's main and reply briefs are not disputed by the respondent; (10) when the
findings of fact are premised on the supposed absence of evidence and contradicted
by the evidence on record; and (11) when the Court of Appeals manifestly
overlooked certain relevant facts not disputed by the parties, which, if properly
considered, would justify a different conclusion.[8]

If the allegedly erroneous findings of fact by the Court of Appeals amounts

to grave abuse of discretion amounting to lack of or excess of jurisdiction, the
proper remedy would indeed be a petition for certiorari under Rule 65. However,
if the allegedly erroneous findings of fact constitute only a mistake of judgment,
the proper remedy is a petition for review on certiorari under Rule 45. Since the
petition filed in the case at bar is one under Rule 65, we would be constrained to
dismiss the same if we find a mere error of judgment.
Credibility of Architect Noel Cano
The contract between petitioner and respondent provides:
4.01

Progress Billing will commence 15 days after the Contractor receive[s] the
notice to proceed from the Owner.

4.02

Balance will be collected every 2-weeks, based on the accomplishment of

work value submitted by the contractor to the Owner and to be certified for
payment by the architect assigned on site.

4.03

Final and full payment of the consideration herein above-mentioned shall

be made by the owner to the contractor upon fulfilling the condition set
forth and approved by the architect assigned on site.[9]

Pursuant thereto, the architect on site, Architect John Noel Cano, certified
for payment four progress billings, which petitioner Ong paid on the following
dates[10]:
Partial
Progress
Billing
1st
2nd
3rd
4th

Total

Date Sent

Covered
Period

28 January
1995

19-28
January

15 February
1995

29 January
to 15
February
16 February
to 3 March

8
March
1995
31
March
1995

Amount

Part of
Project Accomplished
(contract price:
P 200,000.00)

Date of
Partial
Payment

Date of Full
Payment

---

6 February
1995

P 35,950.00

17.975 %

P 69,300.00

34.650 %

22 February
1995

4 March
1995

20.750 %

24 March
1995

6 April 1995

P 41,500.00

---

---

P 30,950.00

15.475 %

P 181,700.00

88.850 %

4-18 March

As earlier stated, this controversy arose with respect to the fourth partial
billing. Petitioner Ong claims that the fourth partial billing is not yet due and
demandable, since only 60% of the work has been accomplished. Petitioner Ong
claims that Architect Canos certification as to the accomplishment of the work
cannot be trusted, since Architect Cano was allegedly biased in favor of respondent
Bogalbal.[11]
Petitioner Ong claims that Arch. Cano was an associate of [respondent
Bogalbal] in his construction business, and because of this, he was partial, biased
and unprofessional about his work.[12] Petitioner Ong adds that work was
conducted on the job site seven days a week, but Architect Cano was present only
twice or thrice a week, and therefore [h]e was in no position to determine whether
or not [respondent Bogalbal] performed as claimed.[13]
The afore-quoted Article 4.02 of the Owner-Contractor Agreement between
petitioner Ong and respondent Bogalbal, which provides that the [b]alance shall
be collected every 2-weeks, based on the accomplishment of work value submitted
by the contractor to the Owner and to be certified for payment by the architect on
site,[14] makes the second paragraph of the following provision of the Civil Code
applicable:
Art. 1730. If it is agreed that the work shall be accomplished to the
satisfaction of the proprietor, it is understood that in case of disagreement the
question shall be subject to expert judgment.
If the work is subject to the approval of a third person, his decision shall
be final, except in case of fraud or manifest error.

The existence of fraud or manifest error, being an exception to the finality of

the decision of a third person under Article 1730, should be adequately proven by
petitioner Ong.
Petitioner Ong, however, miserably failed to prove the same. Petitioner
Ongs allegation that the certifications may have been purposely doctored or
engineered in such a fashion as to unduly favor [respondent Bogalbal], in the
desire of Architect Cano to return a favor or repay a debt of gratitude[15] is a bare
speculation that cannot be given any credence. It is utterly inappropriate for
petitioner Ong to paint Architect Cano as biased, partial, and unprofessional just
because Architect Canos architectural firm, Balce-Sindac & Associates, was
allegedly recommended to her by respondent Bogalbal. The fact remains that it

was petitioner Ong and Balce-Sindac & Associates which had privity of contract
with each other, petitioner Ong having contracted with the latter firm for its project
architectural design and plan. Balce-Sindac & Associates, in turn, assigned
Architect Cano as supervising architect on site. The alleged recommendation by
respondent Bogalbal is enormously inadequate to prove bad faith on the part of
Architect Cano. Good faith is always presumed.[16] It is the one who alleges bad
faith who has the burden to prove the same.[17]
Neither was petitioner able to prove manifest error on the part of Architect
Cano. The presence of Architect Cano only twice or thrice a week was not
adequately proven to have made him incompetent to determine the completion of
the project. Determination of project completion requires inspection of a product
rather than a process. Besides, whereas Architect Cano provided a detailed
progress report that substantiate respondent Bogalbals allegation that 88.45% of
the project had been accomplished,[18] petitioner Ong was not able to demonstrate
her repeated claim that only 60% of the project has been completed. [19] Petitioner
Ong alleged that the same was admitted by respondent Bogalbal in the pleadings
filed with this Court,[20] but we were unable to find any such admission. It seems
that petitioner Ong was referring to the Kenzo flooring, 60% of which respondent
claims to have finished.[21]
Time and again, this Court has ruled that the findings of the lower court
respecting the credibility of witnesses are accorded great weight and respect since
it had the opportunity to observe the demeanor of the witnesses as they testified
before the court. Unless substantial facts and circumstances have been overlooked
or misunderstood by the latter which, if considered, would materially affect the
result of the case, this Court will undauntedly sustain the findings of the lower
court.[22] In the case at bar, the credibility of Architect Cano was upheld by the
MeTC, which had the opportunity to observe Architect Canos demeanor as he
testified. Neither the Court of Appeals, nor the RTC, questioned such credibility,
the RTC having ruled in favor of petitioner Ong pursuant to an interpretation of
law.[23]
Alleged novation of
Contractor Agreement

the

Owner-

Petitioner Ong also claims, as a defense against payment of the fourth

progress billing, that the only reason why the fourth billing was not paid was
because [respondent Bogalbal] himself agreed and committed to collect the fourth
progress billing after he completed the Kenzo flooring.[24] Petitioner Ong claims

that, because of this promise, her obligation to pay respondent Bogalbal has not
yet become due and demandable.[25]
The Court of Appeals rejected this argument, ruling that respondent
Bogalbals stoppage of work on the project prior to its completion cannot justify
petitioner Ongs refusal to pay the fourth progress billing and the value of
respondent Bogalbals accomplished work on the Kenzo flooring. On the
contrary, according to the Court of Appeals, respondent Bogalbal was justified to
refuse to continue the project due to petitioner Ongs failure to pay the fourth
progress billing.[26] According to the Court of Appeals:
Records reveal that [herein respondent Bogalbal] submitted his fourth
(4 ) progress billing for work accomplished on [herein petitioner Ongs] boutique
for the period covering March 4 to 18, 1995 (Exh. B, ibid.). Said billing was in
accordance with the parties agreement that it will be collected every two (2)
weeks, based on the accomplishment of work value submitted by the contractor to
the owner and certified for payment by the architect assigned on site (Article 4.02,
Owner-contractor Agreement; Exh. A-1, p. 101, ibid.). However, [petitioner
Ong], immediately upon her receipt of said billing, refused to pay the same since
it was allegedly in excess and over the value of the work accomplished during
the period. This was, in fact, part of the statement/findings of the facts of the
lower courts decision (p. 2, RTC Decision; p. 400, ibid.).
th

[Petitioner Ong], at the very outset, refused to pay the fourth (4th) billing
despite actual work accomplished on her botique which was certified by the
architect on site, John Noel Cano, all in accordance with the agreement of the
parties. [Respondent Bogalbals] eventual decision not to proceed anymore
with the contract cannot be used as a reason to justify [petitioner Ongs] refusal
to pay her obligation. This notwithstanding the parties supposed verbal
agreement that collection of said billing will be held on abeyance until after
[respondent Bogalbal] finished the work on the kenzo flooring which
[petitioner Ong] requested to be changed from its original plan of vinyl tile
flooring. The proven fact is that there was work accomplished on [petitioner
Ongs] boutique equivalent to the bill being charged her in the fourth (4th)
progress billing in accordance with their contract. While the fourth (4th) billing
covered the accomplished work therefor as certified by the architect assigned on
site, the agreement as to the kenzo flooring is subject to another bill covered by
the change order. (Emphasis supplied.)[27]

The Court of Appeals is in error. If the parties indeed had a verbal

agreement that collection of said billing will be held on abeyance until after
respondent Bogalbal finished the work on the Kenzo flooring, there would have
been a novation of petitioner Ongs obligation to pay the price covered by the

fourth billing by changing the principal conditions therefor. This falls under the
first type of novation under Article 1291 of the Civil Code which provides:
Article 1291. Obligations may be modified by:
(1) Changing their object or principal conditions;
(2) Substituting the person of the debtor;
(3) Subrogating a third person in the rights of the creditor.

While the subject of novation is, in the Civil Code, included in Book IV,
Title I, Chapter 4, which refers to extinguishment of obligations, the effect of
novation may be partial or total. There is partial novation when there is only a
modification or change in some principal conditions of the obligation. It is total,
when the obligation is completely extinguished.[28] Also, the term principal
conditions in Article 1291 should be construed to include a change in the period to
comply with the obligation. Such a change in the period would only be a partial
novation, since the period merely affects the performance, not the creation of the
obligation.[29]
If petitioner Ongs allegation was true, then the fourth partial billings
principal condition -- that the (b)alance shall be collected every 2-weeks, based on
the accomplishment of work value submitted by the contractor to the Owner and to
be certified for payment by the architect assigned on site[30] would have been
modified to include another condition, that of the finishing of the Kenzo flooring
by respondent Bogalbal.
As previously discussed, the Court of Appeals did not bother to review the
evidence on petitioner Ongs allegation of respondent Bogalbals promise to
finish the Kenzo flooring before the fourth progress billing shall be paid. The
Court of Appeals instead brushed off the contention with its explanation that
[respondent Bogalbals] eventual decision not to proceed anymore with the
contract cannot be used as a reason to justify [petitioner Ongs] refusal to pay her
obligation, x x x notwithstanding the parties supposed verbal agreement that
collection of said billing will be held on abeyance until after [respondent
Bogalbal] finished the work on the kenzo flooring which [petitioner Ong]
requested to be changed from its original plan of vinyl tile flooring.
Novation is never presumed. Unless it is clearly shown either by express
agreement of the parties or by acts of equivalent import, this defense will never be
allowed.[31]

The evidence preponderates in favor of respondent Bogalbal that there had

been no novation of the contract. At best, what was proven was a grudging
accommodation on the part of respondent Bogalbal to continue working on the
project despite petitioner Ongs failure to pay the fourth progress
billing. Respondent Bogalbals fourth partial billing demand letters dated 21
April 1995 and 15 May 1995, both of which were served upon petitioner Ong after
the alleged 20 April 1995 meeting,[32] is inconsistent with the theory that the
meeting had produced a novation of the petitioner Ongs obligation to pay the
subject billing.
More importantly, assuming that there was indeed a novation of the
obligation of petitioner Ong to pay the fourth billing so as to include as additional
condition the completion of the Kenzo flooring, such new condition would,
nevertheless, be deemed fulfilled. This is pursuant to Article 1186 of the Civil
Code, which provides:
Article 1186. The condition shall be deemed fulfilled when the obligor
voluntarily prevents its fulfillment.

According to petitioner Ong herself:

Petitioner sent [respondent Bogalbal] letters demanding that he should
return to the jobsite with his people and comply with his commitment. When the
demand letters were ignored, petitioner was constrained to hire the services of
another contractor, for which she had to unnecessarily incur expenses in the
amount of P78,000.00. But just the same, the completion of the project was
delayed for eighty two (82) days, which also caused petitioner additional
damages.[33]

The Civil Code indeed provides that, (i)f a person obliged to do something fails to
do it, the same shall be executed at his cost. This same rule shall be observed if he
does it in contravention of the tenor of the obligation. Furthermore, it may be
decreed that what has been poorly done be undone.[34] There is no question,
however, that such allegation constitutes an admission that Petitioner Ong had
voluntarily prevented the fulfillment of the condition which should have given rise
to her obligation to pay the amount of the fourth billing. Respondent Bogalbal
would no longer have the opportunity to finish the Kenzo flooring if another
contractor had already finished the same. Such condition would, hence, be deemed

fulfilled under Article 1186 of the Civil Code, and, therefore, petitioner Ongs
obligation to pay the amount of the fourth billing has been converted to a pure
obligation.

Authority of respondent Bogalbal to

abandon work
This Court has held that, even if respondent Bogalbal unjustifiably
withdrew from the project, petitioner Ongs obligation is nevertheless due and
demandable because of the third-party certification by Architect Cano on the
completion of the fourth project billing as required by their contract. This Court
has also held that petitioner Ong has not sufficiently proven the alleged contract
novation adding a new condition for her payment of the fourth progress billing.
The following arguments of petitioner Ong are already inconsequential as to
whether she should be held liable for the fourth billing: (1) that the power to
resolve contracts under Article 1191[35] of the Civil Code cannot be invoked
extrajudicially in the absence of stipulation to the contrary;[36] (2) that petitioner
never rushed respondent Bogalbal to complete the Kenzo flooring in three
days;[37] (3) and that respondent Bogalbal failed to complete the Kenzo flooring
on time because of his incompetence.[38] All these arguments merely amplify
petitioner Ongs primary contention that respondent Bogalbal was not justified in
abandoning the project.[39]
The issue of whether or not respondent Bogalbal is justified in abandoning
the project is relevant to the resolution of petitioner Ongs counterclaim against
respondent Bogalbal.
The Court rules in favor of petitioner Ong on this score. There is nothing in
the record which would justify respondent Bogalbals act of abandoning the
project.
However, contrary to the finding of the RTC, Article 1724 is inapplicable to
this case. Article 1724 provides:
Art. 1724. The contractor who undertakes to build a structure or any other
work for a stipulated price, in conformity with plans and specifications agreed
upon with the landowner, can neither withdraw from the contract nor demand an
increase in the price on account of the higher cost of labor or materials, save when
there has been a change in the plans and specifications, provided:

(1) Such change has been authorized by the proprietor in writing; and
(2) The additional price to be paid to the contractor has been determined in
writing by both parties.

According to the RTC, the exception in Article 1724 (change in plans and
specifications authorized by the proprietor in writing, and the additional price
therefor being determined by the proprietor in writing) applies only with respect to
the prohibition to demand an increase in the price on account of the higher cost of
labor or materials and not with respect to the prohibition to withdraw from the
contract. There is therefore no exception allowed by law insofar as withdrawal
from the contract is concerned, and, hence, respondent Bogalbal cannot claim the
change order as a justification for his abandonment of the project. [40]
This is incorrect. According to this Court in Arenas v. Court of
Appeals,[41] Article 1724 contemplates disputes arising from increased costs of
labor and materials. Article 1724 should, therefore, be read as to prohibit a
contractor from perpetrating two acts: (1) withdrawing from the contract on
account of the higher cost of the labor or materials; and (2) demanding an increase
in the price on account of the higher cost of the labor or materials.[42] This focus
on disputes arising from increased cost of labor and materials is even more evident
when the origin of Article 1754 is reviewed. Article 1754 of the 1950 Civil Code
is based on Article 1593[43] of the Spanish Civil Code, which states:
Art. 1593. An architect or contractor who, for a lump sum, undertakes the
construction of a building, or any other work to be done in accordance with a plan
agreed upon with the owner of the ground, may not demand an increase of the
price, even if the cost of the materials or labor has increased; but he may do so
when any change increasing the work is made in the plans, provided the owner
has given his consent thereto.

Article 1593 of the Spanish Civil Code did not contain a similar prohibition
against abandonment, and was entirely focused on its apparent objective to
providing an exception to the rule that a contracting party cannot unilaterally
amend (by increasing the contract price) the contract despite supervening
circumstances.
Neither party is claiming that the abandonment arose from increased costs of
labor and materials. Petitioner Ong claims that respondent Bogalbal failed to
complete the Kenzo flooring on time because of his incompetence.[44] Respondent

Bogalbal claims, on the other hand, that he abandoned the work because of
petitioner Ongs continuing refusal to pay the fourth progress billing in violation of
their contract.[45] Since the dispute has nothing to do with increased costs of labor
and materials, Article 1724 is not applicable.[46]
Thus, it is the general rules on contracts which are applicable. Expounding
on the argument by respondent Bogalbal, the Court of Appeals held:
It should be noted that the power to rescind obligations is implied in reciprocal
ones, in case one of the obligors should not comply with what is incumbent upon
him (par. 1, Art. 1191, Civil Code).
[Herein petitioner Ongs] breach of contract was her failure to pay what
she was legally bound to pay under her contract with [respondent
Bogalbal]. Payment, being the very consideration of the contract, is certainly
not a mere casual or slight breach but a very substantial and fundamental breach
as to defeat the object of the parties making the agreement, due to which
rescission of the contract may be had (Ang vs. Court of Appeals, 170 SCRA 286,
296). [Petitioner Ongs] contention that [respondent Bogalbal] should have had
more capital to absorb a little delay in her payment is not quite tenable (TSN, June
21 1996; p. 7).[47]

This Court, however, has held in Tan v. Court of Appeals,[48] that:

[T]he power to rescind obligations is implied in reciprocal ones in case one of the
obligors should not comply with what is incumbent upon him x x x. However, it
is equally settled that, in the absence of a stipulation to the contrary, this power
must be invoked judicially; it cannot be exercised solely on a partys own
judgment that the other has committed a breach of the obligation. Where there
is nothing in the contract empowering [a party] to rescind it without resort to
the courts, [such partys] action in unilaterally terminating the contract x x x is
unjustified.

In the case at bar, there is nothing in the Owner-Contractor Agreement

empowering either party to rescind it without resort to the courts. Hence,
respondent Bogalbals unilateral termination the contract without a court action is
unjustified.
Petitioner Ongs Counterclaim

Since respondent Bogalbal is unjustified in abandoning the project, should

this Court award damages to petitioner Ong? Considering that both parties
committed a breach of their respective obligations, Article 1192 of the Civil Code
is on all fours:
Art. 1192. In case both parties have committed a breach of the obligation,
the liability of the first infractor shall be equitably tempered by the courts. If it
cannot be determined which of the parties first violated the contract, the same
shall be deemed extinguished, and each shall bear his own damages.

Under this provision, the second infractor is not liable for damages at
all; the damages for the second breach, which would have been payable by the
second infractor to the first infractor, being compensated instead by the mitigation
of the first infractors liability for damages arising from his earlier breach. The
first infractor, on the other hand, is liable for damages, but the same shall be
equitably tempered by the courts, since the second infractor also derived or thought
he would derive some advantage by his own act or neglect.[50] Article 2215,
however, seems contradictory, as it gives the court the option whether or not to
equitably mitigate the damages, and does not take into account which infractor first
committed breach:
[49]

Art. 2215. In contracts, quasi-contracts, and quasi-delicts, the

court may equitably mitigate the damages under circumstances other than the
case referred to in the preceding article,[51]as in the following instances:
(1) That the plaintiff himself has contravened the terms of the contract; x
xx

It is a cardinal principle that a statute must be so construed as to harmonize

all apparent conflicts, and give effect to all its provisions whenever possible.[52]
Articles 1192 and 2215 of the Civil Code are not irreconcilably
conflicting. The plaintiff referred to in Article 2215(1) should be deemed to be the
second infractor, while the one whose liability for damages may be mitigated is the
first infractor. Furthermore, the directions to equitably temper the liability of the
first infractor in Articles 1192 and 2215 are both subject to the discretion of the
court, despite the word shall in Article 1192, in the sense that it is for the courts
to decide what is equitable under the circumstances.

In the case at bar, both respondent Bogalbal and petitioner Ong claim that it
was the other party who first committed a breach of contractual
obligations.[53] Considering this Courts finding that there had been no contract
novation requiring respondent Bogalbal to finish the Kenzo flooring before the
fourth progress billing shall be paid, it is crystal clear that it was petitioner Ong
who first violated the contract. As such, it is petitioner Ong who is liable to pay
damages, which may, however, be reduced, depending on what is equitable under
the circumstances. On the other hand, since respondent Bogalbal is the second
infractor, he is not liable for damages in petitioner Ongs counterclaim.
Care must, however, be judiciously taken when applying Article 1192 of the
Civil Code to contracts such as this where there has been partial performance on
the part of either or both reciprocal obligors. Article 1192, in making the first
infractor liable for mitigated damages and in exempting the second infractor from
liability for damages, presupposes that the contracting parties are on equal footing
with respect to their reciprocal principal obligations. Actual damages representing
deficiencies in the performance of the principal obligation should be taken out of
the equation.[54]
In the case at bar, the partial performance of respondent Bogalbal
(88.85%[55] of the original contract and 60% of the Kenzo flooring) is more than
the partial payment of petitioner Ong (73.375%[56] of the original contract and 0%
of the Kenzo flooring).
For reference, the MeTC Decision, which was reinstated by the Court of
Appeals, awarded the following to respondent Bogalbal:

Value of accomplished work on the original contract

for the period 4 to 18 March 1995:
Value of accomplished work on the Kenzo flooring
(60% of the agreed fee of P 25,000, minus P2,000
paid under the third progress billing)
Moral damages
Exemplary damages
TOTAL

P 30,950.00
P 13,000.00

P 20,000.00
P 25,000.00
P 88,950.00

Petitioner Ong should first be obliged to pay the value of the accomplished
work (P30,950.00 and P13,000.00), before the damage scheme under Article 1192
of the Civil Code is applied. Therefore, this Court would have been limited to

determining how much of the moral and exemplary damages, for which petitioner
Ong is liable, may be mitigated by the amount of damages caused by respondent
Bogalbal, as provided under Article 1192.
As earlier discussed, however, this mitigation is subject to the discretion of
the court, depending on what is equitable under the circumstances. It would have
been within this Courts power to mitigate the moral and exemplary damages for
which petitioner Ong is liable if she had only filed an ordinary appeal under Rule
45 of the Rules of Court. It would be an exaggeration to consider such nonmitigation by the Court of Appeals as grave abuse of discretion leading to lack of
or excess of jurisdiction, which would have been reviewable by this Court in
a certiorari proceeding under Rule 65.[57] Grave abuse of discretion implies a
capricious and whimsical exercise of judgment as is equivalent to lack of
jurisdiction, or, when the power is exercised in an arbitrary or despotic manner by
reason of passion or personal hostility, and it must be so patent and gross as to
amount to an evasion of positive duty enjoined or to act at all in contemplation of
law.[58] Mere abuse of discretion is not enough -- it must be grave.[59]
All of the foregoing shows that while there had been some errors of law on
the part of the Court of Appeals, the Petition would still fail even if it were a
Petition for Review under Rule 45. With more reason is this Court constrained to
dismiss a Petition for Certiorari under Rule 65, which requires not a mere error in
judgment, but a grave abuse of discretion amounting to lack of or excess of
jurisdiction.
Finally, this Court notices that the prayer in the instant Petition
for Certiorari only seeks to nullify the Resolution of the Court of Appeals on
petitioner Ongs Motion for Reconsideration, without praying for the nullification
of the Decision itself sought to be reconsidered. The reason seems to be the fact
that petitioner Ong, through counsel, received the Decision more than sixty days
prior to the filing of the Petition. A Petition seeking to nullify such Decision was,
thus, perceived to be violative of Section 4, Rule 65 of the 1997 Rules of Civil
Procedure, which originally provides:
SEC. 4. Where petition filed. The petition may be filed not later than
sixty (60) days from notice of the judgment, order or resolution sought to be
assailed in the Supreme Court or, if it relates to the acts or omissions of a lower
court or of a corporation, board, officer or person, in the Regional Trial Court
exercising jurisdiction over the territorial area as defined by the Supreme
Court. It may also be filed in the Court of Appeals whether or not the same is in
aid of its appellate jurisdiction, x x x.

Section 4, Rule 65 was, however, amended on 1 September 2000, several

months before the filing of this Petition, to insert the following provision:
In case a motion for reconsideration or new trial is timely filed, whether such
motion is required or not, the sixty (60) day period shall be counted from notice of
the denial of said motion.

This insertion gives petitioner Ong a fresh 60-day period to assail the
Decision via a Petition for Certiorari, which is what this Petition really seeks and
which is how this Court has treated the same.
WHEREFORE, the Decision of the Court of Appeals reinstating the
Decision of the Metropolitan Trial Court holding petitioner Victoria Ong liable for
damages
is
affirmed. The
instant
Petition
for Certiorari is
hereby DISMISSED for lack of merit. Costs against petitioner.